Ansur America Insurance Company v. Borland

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANSUR AMERICA INSURANCE )

COMPANY, a Michigan Corporation, )

)

Plaintiff, )

) Case No. 3:21-CV-59-SMY-MAB

vs. )

)

JAMES A. BORLAND and QUINN, )

JOHNSTON, HENDERSON & )

PRETORIOUS, CHTD., an Illinois )

corporation, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court as a result of a discovery dispute between Plaintiff

Ansur America Insurance Company (“Ansur”) and Defendants James Borland and

Quinn, Johnston, Henderson, & Pretorious, Chtd (collectively, “Defendants”).

Specifically, Defendants filed a motion to compel the production of a large number of

documents that Ansur has withheld on the basis of various privileges (see Doc. 95).1

For the reasons set forth below, Defendants’ motion to compel is GRANTED IN

PART and DENIED IN PART (Doc. 95). Additionally, as discussed below, the Court

ORDERS the parties to meet and confer so they may: (1) work together to determine

which privilege claims remain outstanding in light of the Court’s decision; and (2)

attempt to reach an agreement as to the remaining documents and communications.

1 This matter was referred to the undersigned for resolution of Defendants’ motion to compel (Doc. 97).

BACKGROUND

Ansur hired Defendants to defend its insured, Clawfoot Supply, LLC d/b/a

Signature Hardware (“Signature”), in a product liability action brought against Signature

by two of its retail customers, Helen and Wayne Miles (hereafter, the “Miles litigation”)

(Doc 1, p. 1; Doc. 95, p. 1; Doc. 125, p. 2). Defendants led Ansur to believe they could

either obtain a defense verdict or a favorable settlement in the Miles litigation (Doc. 1, p.

2). However, Ansur alleges Defendants failed to defend the case in a reasonable manner,

which forced Ansur to settle for the policy limit, a substantially higher figure (Doc. 1, p.

2; Doc. 95, p. 1). As a result, Ansur initiated this action against Defendants, alleging

malpractice in connection with the Miles litigation (see generally Doc. 1). In response,

Defendants argue Ansur contributed to its own injury (Doc. 19, pp. 42-43).

The parties engaged in extensive written and oral discovery (see generally Docs. 95;

125). However, Ansur withheld hundreds of documents and communications and

redacted numerous others based primarily upon the attorney-client privilege and work

product privilege (Doc. 95, p. 2; Doc. 125, p. 3). Accordingly, Defendants filed the instant

motion to compel, which seeks the production of several hundred withheld or redacted

documents (Doc. 95; see also Doc. 111-1 (listing the documents Defendants dispute

Ansur’s privilege claims); Doc. 111-2 (the most recent comprehensive privilege log)).

Thereafter, Ansur filed a response in opposition (Doc. 125) and Defendants filed a reply

in support of production (Doc. 128). Throughout this dispute, the parties have met and

conferred several times in an attempt to resolve or narrow their extensive discovery

dispute and the Court has intervened on multiple occasions (see Docs. 101; 133). However,

based upon the parties most recent representations to the Court, the parties have reached

an impasse and are unable to resolve the current discovery dispute without judicial

intervention (see Doc. 133).

Additionally, in an attempt to streamline the resolution of this discovery dispute,

the Court ordered the parties to file supplemental letter briefs with the Court that

addressed several key issues raised by the parties in their briefs including: (1) whether

certain individuals should be considered members of Ansur’s control group; (2) whether

Ansur and its reinsurers share a common legal interest; and (3) whether Ansur waived

its privilege claims to any documents by placing their contents at issue (Doc. 134). Both

parties timely submitted the requested supplemental briefs.

PRIVILEGE STANDARDS

As a civil action brought before this Court pursuant to its diversity jurisdiction,

Illinois law regarding attorney client-privilege governs. See Fed. R. Evid. 501; see also

Hartford Fire Ins. Co. v. PLC Enterprises, Inc., 1994 WL 148664, at *2 (N.D. Ill. Apr. 21, 1994)

(applying Illinois law under similar circumstances). Illinois courts maintain a broad

discovery policy in favor of disclosure and ascertaining the truth. See Archer Daniels

Midland Co. v. Koppers Co., 485 N.E.2d 1301, 1303 (Ill. App. 1985). “The courts, therefore,

narrowly construe the attorney-client privilege in order to avoid trammeling upon the

broad discovery policy.” Id. “Consequently, the burden of showing facts which give rise

to the privilege rests on the proponent.” Knief v. Sotos, 537 N.E.2d 832, 835 (Ill. 1989). This

means “the proponent must show that the communication was made with an

understanding that it would not be disclosed, that it has remained confidential, and was

made to an attorney for the purpose of securing legal advice or service.” Id.

Additionally, when a corporate client invokes the attorney-client privilege, “the

corporation must go beyond these threshold requirements and show that the employee

involved falls within the control group of the corporation, as defined in Consolidation

Coal.” Archer Daniels, 485 N.E.2d at 1303 (citing Consolidation Coal Co. v. Bucyrus-Erie Co.,

432 N.E.2d 250 (Ill. 1982)). The control group test creates two tiers of corporate employees

whose communications may be protected by the privilege. Id. “The first tier consists of

the decision-makers, or top management. The second tier consists of those employees

who directly advise top management, and upon whose opinions and advice the decision-

makers rely.” Mlynarski v. Rush Presbyterian-St. Luke’s Med. Ctr., 572 N.E.2d 1025, 1028 (Ill.

App. 1991). In other words, for an employee’s communications to fall within the second

tier of the control group, that employee must hold an advisory role to top management

in a particular area:

[S]uch that a decision would not normally be made without his advice or

opinion, and whose opinion in fact forms the basis of any final decision by

those with actual authority, is properly within the control group. However,

the individuals upon whom he may rely for supplying information are not

members of the control group. Thus, if an employee of the status described

is consulted for the purpose of determining what legal action the

corporation will pursue, his communication is protected from disclosure.

Consolidation Coal, 432 N.E.2d at 258. Critically, the Illinois Supreme Court has

emphasized that an employee only falls into the second tier if their “opinion” is relied

upon by decisionmakers, not if the underlying facts and information they provide is

relied upon by decisionmakers. See id.; Doe v. Twp. High Sch. Dist. 211, 34 N.E.3d 652, 673

(Ill. App. 2015).

In addition, certain documents may be appropriately withheld from production

based upon the work product doctrine, which protects documents prepared by attorneys

in anticipation of litigation for the purpose of analyzing and preparing a client’s case. See

Nat’l Fire & Marine Ins. Co. v. Lindemann, 2018 WL 6505900, at *2 (S.D. Ill. Jan. 31, 2018);

Ill. Sup. Ct. Rule 201(b)(2) (“Material prepared by or for a party in preparation for trial is

subject to discovery only if it does not contain or disclose the theories, mental

impressions, or litigation plans of the party’s attorney.”). However, “[b]ecause the

attorney-client privilege and work-product doctrine obscure the search for the truth, both

should be confined to their narrowest possible limits to minimize the impact upon the

discovery process.” Ziemack v. Centel Corp., 1995 WL 314526, at *2 (N.D. Ill. May 19, 1995).

Significantly, “[d]istribution of otherwise privileged material to individuals

outside of the control group destroys the privilege.” Midwesco-Paschen Joint Venture For

Viking Projects v. Imo Indus., Inc., 638 N.E.2d 322, 329 (Ill. App. 1994). However, one

limited exception to this rule is the common interest doctrine. See Dexia Credit Loc. v.

Rogan, 231 F.R.D. 268, 272-73 (N.D. Ill. 2004) (noting that the legal principles governing

the application of this doctrine appear to be the same under Illinois and federal law). As

explained in Dexia, the common interest doctrine serves to foster communication between

parties that share a common interest by allowing communications between the parties to

remain privileged. Id. at 273. To maintain a privilege under this doctrine, the asserting

party must first demonstrate that the underlying documents or communications were

shielded from production based upon an underlying privilege, and then demonstrate

“’actual cooperation toward a common legal goal’ with respect to the documents they

seek to withhold.” Id. (quoting Strougo v. BEA Assoc., 199 F.R.D. 515, 520 (S.D.N.Y. 2001)).

Furthermore, the “shared interest must be identical, not simply similar.” Id.

Finally, even if a document or communication is privileged, the privilege is waived

if the withholding party has placed the document or communication “at issue.” W. States

Ins. Co. v. O’Hara, 828 N.E.2d 842, 850 (Ill. App. 2005). Typically, this type of waiver occurs

“where the sought-after material is either the basis of the lawsuit or the defense thereof.”

Waste Mgmt., Inc. v. Int’l Surplus Lines Ins. Co., 579 N.E.2d 322, 331 (Ill. 1991); Shapo v. Tires

‘N Tracks, Inc., 782 N.E.2d 813, 819 (Ill. App. 2002) (noting that the “at issue” waiver

applies to both the attorney-client privilege and work-product privilege).

Understandably, “[t]he purpose of the doctrine is to prevent a party from strategically

and selectively disclosing partial attorney-client communications with his attorney to use

as a sword, and then invoking the privilege as a shield to other communications so as to

gain a tactical advantage in litigation.” Ctr. Partners, Ltd. v. Growth Head GP, 981 N.E.2d

345, 362 (Ill. 2012) (emphasis in original).

DISCUSSION

A. Control Group Members

Defendants dispute whether numerous individuals listed on Ansur’s privilege log

are control group members (Doc. 95, pp. 6-8). Significantly, for the individuals discussed

below that the Court determines are not members of the control group, Ansur is required

to turn over any documents or communications to which they are listed on (whether they

sent or received the communication directly or were cc’ed or bcc’ed). See Midwesco-

Paschen Joint Venture, 638 N.E.2d at 329 (“Distribution of otherwise privileged material to

individuals outside of the control group destroys the privilege.”). For simplicity’s sake,

the Court addresses each challenged member individually.

1. Andrew Knudsen

In 2019, Andrew Knudsen served as the vice president for claims at

Ansur/Frankenmuth Insurance (Doc. 125-3, pp. 5-6).2 Based upon the affidavit submitted

by Knudsen, as the vice president for claims, Knudsen shared ultimate responsibility for

settling the Miles litigation and oversaw the other cases related to the Miles litigation (Id.).

As such, Ansur has established that Knudsen was a member of the first tier of Ansur’s

control group.

2. James Troester

James Troester served as a litigation manager in the claims department (Doc. 125-

3, pp. 9-10). In this role, Troester was responsible for overseeing all non-worker’s

compensation litigation involving Ansur’s insured parties, which included the Miles

litigation and its related cases (Id.). For these reasons, Ansur has also demonstrated that

Troester was a member of the first tier of Ansur’s control group.

3. John Rosilier

John Rosilier was the former chief financial officer at Ansur (Doc. 125, p. 8; Doc.

128, p. 2). Critically, however, Ansur has failed to provide any explanation as to why

2 Frankenmuth Insurance is Ansur’s parent company.

Rosilier should be considered a control group member based solely upon his title as chief

financial officer.

Rather than submit an affidavit or other evidence demonstrating Rosilier’s role in

the decision-making process, Ansur instead argues “Defendants have not identified any

authority suggesting that a company’s C-Suite executives are not ‘top management’ or

decision-makers.” (Doc. 125, p. 8). This argument misses the mark for two reasons. First,

it is Ansur’s burden to demonstrate that Rosilier was a control group member – not

Defendants’ burden to prove he was not. See, e.g., Midwesco-Paschen, 638 N.E.2d at 330

(“Imo misunderstands who has the burden of proof when it argues that ‘[Midwesco]

failed to submit even a shred of evidence that refutes Imo’s [privilege] claim concerning

the materials prepared by Schifler.’”); Knief, 537 N.E.2d at 835. Second, being a senior

executive does not automatically qualify an individual as a control group member in all

areas. See Claxton v. Thackston, 559 N.E.2d 82, 86 (Ill. App. 1990) (“Although the affidavit

states MacGregor was a corporate director, Mayer does not cite authority for the

proposition that directors are ipso facto members of the control group. Nor did Mayer

present any evidence about the actual decision making power of the only non-family

director in Mayer family firm.”); Knief, 537 N.E.2d at 835.

Consequently, by failing to provide any evidence or explanation as to Rosilier’s

role as a decisionmaker in this situation, Ansur has failed to meet its burden and

demonstrate that Rosilier was a control group member whose communications were

privileged. As such, communications involving Rosilier are not privileged.

4. Aaron Weycker

Aaron Weycker worked as Ansur’s assistant controller until September 2019 (Doc.

125-3; pp. 11-12). Thereafter, Weycker served as the director of accounting and finance

(Id.). Specifically, as an assistant controller, Weycker states he advised the previous

director of accounting and finance on all issues related to the company’s accounting

operations, including large losses like that in the Miles litigation (Id.). Weycker also states

he was responsible for overseeing the impact of the Miles litigation and its related

litigation on the company’s books and records. Accordingly, Ansur argues Weycker was

a second-tier control group member until September 2019, at which time he then become

a first-tier control group member (Doc. 125, pp. 8-9).

Ultimately, the Court is not persuaded by Ansur’s arguments. Again, the burden

is on Ansur to demonstrate that its decisionmakers relied upon Weycker’s advice as it

relates to the Miles litigation. See Archer Daniels, 485 N.E.2d at 1303-04. However,

excluding Weycker’s affidavit, none of the other affidavits from Ansur’s employees state

that Weycker’s input was relied on in any regard (see generally Doc. 125-3). While this

could be inconsequential if Weycker’s affidavit sufficiently demonstrated his status as a

control group member, Weycker’s affidavit does not do so. Instead, Weycker’s affidavit

only demonstrates that his advice was relied upon for issues related to large losses and

for “overseeing the impact of the Miles suit.” Crucially, overseeing the impact of a lawsuit

is not the same as overseeing the lawsuit itself. For this reason, Ansur has not adequately

explained how Weycker’s role in overseeing the financial impact of litigation on Ansur’s

books and records involved providing advice that was relied upon when deciding what

legal actions Ansur should pursue. See Consolidation Coal, 432 N.E.2d at 258 (“Thus, if an

employee of the status described is consulted for the purpose of determining what legal

action the corporation will pursue, his communication is protected from disclosure.”).

Additionally, Ansur’s barebones assertions that Weycker was a first-tier control

group member following his promotion to director of accounting and finance are

insufficient. See Claxton, 559 N.E.2d at 86. As with Rosilier, Ansur merely relies on

Weycker’s new title as proof that he was involved in decision-making without providing

any evidence demonstrating that the director of accounting and finance would

necessarily be a decisionmaker in the Miles litigation.

For these reasons, the Court finds Ansur has failed to meet its burden and

demonstrate that Weycker was a control group member. As such, communications

involving Weycker are not privileged.

5. Matthew Zielke

In 2019, Matthew Zielke served as a senior litigation examiner in the claims

department (Doc. 125-3, p. 13). Zielke was brought onto the Miles litigation after it was

reported that the value of litigation had dramatically increased (Id.). Zielke’s affidavit

states that he became a key figure in overseeing coverage aspects of the Miles litigation

and senior leadership relied upon his advice when making decisions surrounding the

Miles litigation (Id.). For these reasons, Ansur has demonstrated that Zielke was a

member of the second tier of Ansur’s control group after his assignment to the case in

May 2019.

6. Craig Hebert

Craig Hebert also served as a senior litigation examiner in the claims department

(Doc. 125-3, p. 2). However, while Hebert was initially the primary employee responsible

for handling the Miles litigation, he lost his authority to settle the case in May 2019, when

its valuation changed (Id.). Hebert states he continued to advise management after losing

his authority, but he also notes that he was “most knowledgeable about the facts of the

case[.]” (Id.). Additionally, Troester’s affidavit states that Hebert advised him during the

course of the Miles litigation and that they discussed “factual findings, advice of counsel,

and strategy[.]” (Doc. 125-3, p. 10).

When determining whether an individual is a member of the control group’s

second tier, a critical distinction exists between individuals who provide opinions that

“substantially influenced decisions” and individuals who provide facts and technical

analysis which “substantially influenced decisions.” See Archer Daniels, 485 N.E.2d at

1304. Only individuals whose opinions would in fact form the basis for any decision by

decisionmakers within the company are part of the control group. See Claxton, 559 N.E.2d

at 86. Put another way, “[e]mployees not within the control group include those whom

top management merely relies upon for supplying information.” Archer Daniels, 485

N.E.2d at 1304. Consequently, Illinois courts have found the record to be insufficient to

establish that an individual was a member of the control group when the record did “not

specify if he had an advisory role in top management, whether a decision in this area

would normally not be made without his advice, or whether his opinion would in fact

form the basis for any decision by others with authority in the company.” Id.

Prior to losing his authority to settle the case in May 2019, Hebert was undoubtedly

a member of the control group based upon his decision-making authority. However, after

losing that authority, Hebert was relied upon primarily for his factual recollection of the

case (see, e.g., Doc. 125-3, p. 2). Specifically, Hebert’s affidavit states that as “the person

most knowledgeable about the facts of the case and most familiar with its history, I

continued to advise my superiors on aspects of the case and afterward, as Frankenmuth

pursued actions against the manufacturer and the insured” (Id.). In other words, while

Hebert (and Troester) both state that he continued to advise Ansur’s decisionmakers,

neither affidavit demonstrates that Hebert’s opinions “in fact form[ed] the basis of the

final decision by those with actual authority.” Archer Daniels, 485 N.E.2d at 1303-04. In

truth, Hebert’s affidavit does not even demonstrate that he was still assigned to the case

following its changed valuation. Similarly, even if Hebert’s and Troester’s affidavits

provided evidence demonstrating that Ansur’s decision-makers actually relied upon

Hebert for more than just factual explanations, Ansur has not demonstrated that “top

management would normally not make a decision in the employee’s particular area of

expertise without the employee’s advice.” Rounds v. Jackson Park Hosp. & Med. Ctr., 745

N.E.2d 561, 568 (Ill. App. 2001).

For these reasons, the Court finds Hebert was not a member of Ansur’s control

group following the case’s change in valuation. Accordingly, any communications or

documents sent from or to Hebert after he lost his settlement authority in May 2019 are

not privileged and must be produced.

7. Matthew Klinski

In 2019, Matthew Klinski worked as a technical coordinator for claims operations

(Doc. 125-3, pp. 3-4). Klinski was brought onto the Miles litigation after it was reported

that the case value had increased significantly (Id.). In this role, Klinski served as a

primary liaison to malpractice counsel and advised Ansur decisionmakers on various

aspects of the case (Id.). For these reasons, Ansur has demonstrated that Klinski was a

member of the second tier of Ansur’s control group after his assignment to the case in

May 2019.

8. Mackenzie Sipes, Katrina Smithhart, Diane Kueffner, & Jennifer Moore

Lastly, the parties dispute whether communications involving Mackenzie Sipes,

Katrina Smithhart, Diane Kueffner, and/or Jennifer Moore may be privileged. In regard

to these individuals, Ansur does not contend that any of them were in the control group.

Instead, Ansur argues they acted in a secretarial role and therefore fall within a

ministerial exception to the general rules regarding the confidentiality of privileged

communications (Doc. 125, pp. 9-10).

Significantly, the ministerial exception allows for communications to remain

privileged even though they involve an individual outside the control group when that

individual is acting in the role of a clerk, secretary, or stenographer, and is facilitating the

transmission of a communication between a client and their attorney. See Abbott Lab’ys v.

Airco, Inc., 1985 WL 3596, at *4 (N.D. Ill. Nov. 4, 1985); Janousek v. Slotky, 980 N.E.2d 641,

653 (Ill. App. 2012) (Explaining that “a communication through any form of agency used

by the client falls within the privilege.”). For instance, in Abbott Laboratories, the court

found communications authored by a secretary remained privileged because “[a]ll of the

documents indicate that [the secretary] authored the notes at the behest of [a control

group member] seeking legal advice, or [their attorney] imparting legal advice.” 1985 WL

3596, at *4.

At this juncture, the Court has not yet individually reviewed the communications

involving these individuals and thus is unable to determine whether the communications

were made on behalf of either a control group member or counsel and were otherwise

privileged because they involved legal advice or attorney work product. While an in

camera review of these communications may be required, before doing so, the Court

directs Ansur to carefully review the communications involving these individuals to

ensure they were acting as ministerial agents by facilitating the transmission of a

privileged communications to control group members. The Court is doubtful that the

ministerial exception will apply to communications where the secretarial agent was the

receiving party of an email (or merely cc’ed) and not its author. Indeed, in situations

where a secretary is included as an email recipient but neither the email itself nor the

privilege log demonstrates why and how their inclusion facilitates the transmission of a

privileged communication or document to a specific control group member, Ansur has

failed to meet its burden and the Court will not find the ministerial exception to be

applicable. If an in camera review is necessary after complying with the Court’s directive

and in light of the above analysis, the Court will conduct one.

B. Reinsurer Common Interest

Defendants next argue that Ansur must produce numerous documents that were

shared between Ansur and its reinsurers because they were not kept confidential and

were not protected by the common interest doctrine (Doc. 128, pp. 3-5). Conversely,

Ansur argues it shared an identical interest with its reinsurers and therefore, the privilege

was not lost by their sharing of documents (Doc. 125, p. 10).

As previously explained, the common interest doctrine is not actually a privilege

in and of itself. Instead, the doctrine extends a preexisting “privilege to communications

made in the presence of third parties for the purpose of coordinating a defense strategy

or pooling information for common legal purpose.” Terra Found. for Am. Art v.

Solomol+Bauer+Giambastiani Architects, Inc., 2015 WL 1954459, at *4 (N.D. Ill. Apr. 29,

2015). The party withholding documents based upon the common interest doctrine bears

the burden of establishing the common interest and the underlying privilege. Id. For

example, in Minnesota Sch. Boards Ass’n Ins. Tr. v. Emps. Ins. Co. of Wausau, 183 F.R.D. 627,

631 (N.D. Ill. 1999), the court was tasked with determining whether a party waived the

work product privilege by sharing several otherwise privileged documents with a

reinsurer or reinsurance broker.3 After first determining that the documents at issue were

protected by the work product privilege, the court then held that “[t]here has been no

waiver herein, since [the party asserting the privilege], as seen, always intended and

3 The parties debated whether the receiving company was a reinsurer or reinsurance broker. Ultimately,

however, the court found the difference to be inconsequential because the disclosure of the privileged

material was consistent with the purpose of maintaining the secrecy of the privileged information.

Minnesota Sch. Boards, 183 F.R.D. at 631.

expected that their communications would remain confidential and protected from

common adversaries[.]” Id. at 631-32 (emphasis added).

Here, the Court is unable to determine whether the common interest doctrine is

applicable without first examining the communications and documents to determine

whether an underlying privilege exists. See id. However, assuming an underlying

privilege does exist, Ansur has submitted affidavits demonstrating the common legal

interest between Ansur and its reinsurers (see Docs. 54-1; 54-2; 54-3; 54-4). Moreover, the

Court is not persuaded by Defendants’ arguments that Ansur and its reinsurers do not

share a common legal interest because Ansur’s reinsurers do not run the risk of legal

liability (Doc. 128, p. 5). Ultimately, Ansur and its reinsurers share a common legal

interest in holding Defendants liable for their alleged malpractice and recovering their

losses. See Dexia, 231 F.R.D. at 273 (“In some cases, this common goal includes pursuit of

litigation against a common adversary.”); Selby v. O’Dea, 90 N.E.3d 1144, 1162 (Ill. App.

2017) (Stating that parties with a common interest need not have perfectly aligned

interests. Rather, “[a]s long as the communications further the common interest between

the parties, it is of no import that the parties’ positions might be otherwise misaligned.”).

Additionally, while the common interest cannot be a mere business interest, “[i]f there is

some or even substantial overlap between the litigation and business interests, the

common interest doctrine still applies so long as a ‘community of interest’ can be

established with respect to the documents.” Dexia, 231 F.R.D. at 273.

However, as with the prior section, the Court directs Ansur to review the

documents it claims are protected under this doctrine in light of the Court’s rulings herein

to determine whether they involve privileged attorney-client communications or work

product. Specifically, when asserting the attorney-client privilege as the underlying

privilege, Ansur must also ensure the “communication was made with an understanding

that it would not be disclosed, that it has remained confidential, and was made to an

attorney for the purpose of securing legal advice or service.” Knief, 537 N.E.2d at 835. In

other words, Ansur must review the communications at issue to ensure they pertain to

securing legal advice and were intended to be confidential. Communications Ansur

claims are protected by its common interest with reinsurers will not be considered

privileged if they are only related to finance or other insurance matters and are not related

to legal advice and a joint legal strategy. Additionally, the common interest doctrine

would not be applicable if the communications are merely non-privileged discussions

between Ansur employees related to reinsurance. For example, Ansur claims an email is

privileged because it contains “information protected by common interest with

reinsurers” (Doc. 111-2, p. 32 at Priv. No. 293). However, Ansur’s privilege log: (1)

demonstrates that the communication was not sent to or from an attorney or reinsurer

and; (2) provides no explanation as to why there is an underlying attorney-client

privilege. Consequently, Ansur must carefully review the communication to determine

if it was “made in connection with the provision of legal services” and was not just

discussing the availability of reinsurance.4 Terra, 2015 WL 1954459 at *3. Again, after

4 Notably, while the Court has referenced the above email as an example, the Court reiterates that Ansur

must conduct this review for all such communications it claims remain privileged due to the common

interest doctrine.

complying with the Court’s directive, the Court will conduct an in camera review as

necessary.

C. “At Issue” Waiver

Defendants claim Ansur waived any claims of privilege as to the documents in

dispute because it placed them at issue by filing this action, which necessarily requires

an examination of Ansur’s own actions (Doc. 95, pp. 8-9). In response, Ansur argues no

such waiver has occurred because it was only Defendants’ defense that injected such

issues into the case (Doc. 125, pp. 12-13). For the following reasons, the Court agrees with

Ansur and finds Ansur has not placed the challenged documents at issue by filing this

action.

The Supreme Court of Illinois addressed a similar challenge in Fischel & Kahn, Ltd.

v. van Straaten Gallery, Inc., 727 N.E.2d 240 (Ill. 2000). In Fischel, an art gallery retained a

law firm to provide legal advice related to limiting its liability to consignment artists in

the event of damage or destruction to their artwork. Id. at 241. A fire subsequently broke

out at the art gallery, which resulted in the gallery suing the building’s owner. Id.

Notably, several of the consignment artists whose work was damaged intervened and

brought claims against the gallery related to the destruction of their artwork. Id. The

gallery then hired a different legal group to represent it in the fire litigation. Id.

Subsequently, the gallery’s first law firm sued the gallery to recover unpaid legal fees. Id.

at 242. The gallery responded by bringing a counterclaim against the law firm, alleging

the law firm negligently provided the gallery with erroneous advice regarding limiting

the gallery’s liability to consignment artists. Id. In responding to the gallery’s

counterclaim, the law firm raised several affirmative defenses, including that the gallery

was contributorily negligent. Id. The law firm filed a request for production of documents

from the gallery’s new lawyers related to the fire litigation and the gallery objected. Id.

The question before the Supreme Court of Illinois was whether the gallery waived

its privileges related to the disputed documents by filing a counterclaim against the law

firm. Id. at 243. Pertinently, the court found the gallery did not waive its privileges

because it was the law firm’s affirmative defense which put the documents at issue, not

the gallery’s counterclaim. Id. at 243-244. The court explained that “[t]o allow [the law

firm] to invade the attorney-client privilege with respect to subsequently retained counsel

in this case simply by filing the affirmative defenses it did would render the privilege

illusory with respect to the communications between [the gallery] and [subsequently

retained counsel]. Thus, we believe that the allegations raised in [the law firm’s]

affirmative defenses were insufficient to put the cause of [the gallery’s] damages at issue,

resulting in waiver of the attorney-client privilege in this case.” Id. at 244. Consequently,

it would be impermissible to force the gallery to waive its privilege when it had not put

the requested documents at issue. Id.

Similarly, in this case it was Defendants’ affirmative defense that Ansur

contributed to its own injury that put these documents at issue. Had Defendants never

raised such a defense, the resolution of Ansur’s legal claim would not have required an

examination of the disputed documents and communications. Therefore, assuming such

documents are appropriately protected by a privilege, it would undermine the purposes

of the attorney-client and work product privileges to find Ansur waived its privileges

here when it was Defendants who put the communications at issue. See id. at 245-46.

D. Sufficiency of Privilege Log and Order to Meet and Confer

Finally, Defendants’ motion to compel also challenges the sufficiency of Ansur’s

privilege log (Doc. 95, p. 3). Defendants are correct that some courts have found privilege

logs to be insufficient when they are either untimely or provide little to no description to

allow a reader to assess the claimed privilege. See Surgery Ctr. at 900 N. Michigan Ave.,

LLC v. Am. Physicians Assurance Corp., Inc., 317 F.R.D. 620, 632-33 (N.D. Ill. 2016).

However, in contrast to those cases, a cursory review of the privilege log created by Ansur

in this case appears to demonstrate enough information to assess each privilege claim.

Accordingly, the Court declines to categorically declare the privilege log deficient.

At this stage of the discovery dispute, the Court is not inclined to review every

individual entry to determine whether it comports with the appropriate standard and

provides sufficient information to establish a claim of privilege. Rather, if Defendants

have an issue with specific entries, they can identify those specifically to Ansur and

ultimately to the Court, if necessary.

CONCLUSION

Defendants’ motion to compel is GRANTED IN PART and DENIED IN PART

(Doc. 95). Ansur is DIRECTED to conduct further review of its documents as outlined

above. Additionally, as discussed above, the Court ORDERS the parties to meet and

confer, in light of the Court’s rulings above, to determine which documents remain

subject to dispute. The Court encourages the parties to work together to resolve any and

all remaining document disputes. However, at a minimum, the Court expects the parties

to significantly narrow the number of documents in dispute that may require an in camera

review.

The parties shall provide a joint status report to the Court within 21 days regarding

their meet and confer efforts. And upon receipt of the status report, the Court will

schedule a status conference, if necessary.

IT IS SO ORDERED.

DATED: October 23, 2023

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge